Mail Abuse Prevention System, LLC v. Black Ice, Inc.

A Santa Clara County Superior Court Judge ruled Thursday
that Black Ice, a New
Hampshire fax and email software company, could pursue its
claims against a California-based anti-spam organization,
saying the company's allegation that it was damaged by being
listed as a spammer has merit.

Mail Abuse Prevention System
(MAPS), the Redwood City based anti-spam organization, is
actually the provider of several Internet products. Its
best-known and most-controversial product is its free Realtime
Blackhole List. This list contains the Internet addresses of
about 4,000 individuals and companies that MAPS claims
routinely send spam, otherwise known as junk e-mail. ISPs use
the list to set up systems to block spam.

Internet Service Providers such as Hotmail
subscribe to MAPS, and can use it to block e-mail from Web
sites on the Blackhole List. MAPS stresses that service
providers make the decision whether to block e-mails, and that
MAPS is simply in the business of providing information.

Lawyers for MAPS have likened their organization to
Consumer Reports, saying it simply renders an opinion on
whether a particular company is generating unwanted spam and
ignoring pleas from computer users to stop sending e-mails. As
the company sees it, issuing those opinions is protected free
speech.

Companies like Black Ice disagree. In court papers
Black Ice has depicted MAPS as recklessly disseminating false
information. Other
critics of the Redwood City company allege it has
accumulated too much control over what Internet messages reach
their destinations.

``The wrongful listing of Black Ice on the MAPS (list) and
the labeling of Black Ice as a `spammer' by MAPS resulted in a
substantial loss of Black Ice's Internet and e-mail services
and damaged Black Ice's business and business reputation,''
the company wrote in court papers filed in September.

It can't be said that MAPS doesn't know what it's getting into. The
corporation maintains a link on it's front page entitled "How
to sue MAPS" and following the link reveals the following, effectively
a statement of MAPS intent:

Ultimately, the board of MAPS believes that new
laws will need to be created to address the problem of Internet mail abuse. One
way to do this is by lobbying legislators, and our allies at CAUCE
are working on that angle. Another way to do this is with case law, as was the
result of the famous Roe vs. Wade decision of 1973. It's our hope that
MAPS can help bring about a similar landmark case and carry it all the way to
the Supreme Court where federal case law can result.

It also can't be said MAPS is ignorant of their criticism; mainly, that by
"black-holing" various ISPs, they are almost assuredly censoring
innocent non-spam emails. The first hyperlink on the front page points here:
a short explanation of why an innocent user's email is not deliverable,
accompanied by an invitation to have the user contact their ISP and encourage
them to stop allowing spam from their servers.

MAPS has also come under fire for the closed, non-democratic nature of
deciding what constitutes spam, and who should go on the list. Others
see it crashing headlong into the First Amendment, serving as a tool to crush
communication offensive to a self-ordained censorship organization.

Either way, Black Ice is not the first company to challenge MAPS in court.
Earlier this year, two other companies sued MAPS on the East Coast, including
Harris Interactive, a giant e-mail company affiliated with the Harris polling
service. MAPS has set up a legal defense fund to fight off challenges to its
anti-spam efforts. In light of that suit, since dropped, Internet mail
giant Hotmail has agreed to allow mail from Harris interactive through to its
customers, but otherwise still uses MAPS as a list for filtering.

Spam blacklist battle goes to court

Even as politicians tinker with legislation that might limit junk e-mail on the Internet, the courts are being thrust into an intensifying legal debate over how far the private sector can go to restrain cyberspace's unwanted missives, known as ``spam.''

The issue has come to a head in a lawsuit unfolding in Santa Clara County Superior Court, where a Redwood City-based anti-spam organization is locked in a legal tussle with a New Hampshire company that claims it has been defamed and economically damaged by being identified as a spammer.

In a case with a host of free speech and e-commerce-related legal implications, a San Jose judge today is scheduled to consider arguments in a lawsuit involving the conduct of Mail Abuse Prevention System, or MAPS, a widely used Peninsula company set up to help companies screen junk e-mail.

Under attack from companies that have wound up on its so-called ``Blackhole List'' of junk e-mailers, MAPS filed suit this spring seeking a definitive ruling from a California court that its practices do not violate any laws. The target of the suit was Black Ice Software, a New Hampshire maker of software tool kits that had threatened legal action over being placed on the Blackhole List.

Black Ice responded by counter-suing MAPS, accusing it of defamation and unfair business practices. Superior Court Judge Socrates Manoukian must now decide how the legal dispute proceeds.

Saying the case raises new legal issues for California, lawyers for MAPS liken the organization to Consumer Reports, saying it simply renders an opinion on whether a particular company is generating unwanted spam and ignoring pleas from computer users to stop sending e-mails.

Internet service providers such as Hotmail subscribe to MAPS, and can use it to block e-mail from Web sites on the Blackhole List. MAPS stresses that service providers actually make the decision whether to block e-mails, and that it is simply in the business of providing information.

``We're no different than a restaurant reviewer at the Mercury News saying `Don't go to this restaurant,' '' said Anne Mitchell, legal director for MAPS. ``People are free to go there or not. It's just opinion protected by the First Amendment.''

Companies like Black Ice disagree. Lawyers for Black Ice could not be reached for comment Wednesday, but in court papers they have depicted MAPS as recklessly disseminating false information. Critics of the Redwood City company maintain it has accumulated too much control over what Internet messages reach their destinations.

``The wrongful listing of Black Ice on the MAPS (list) and the labeling of Black Ice as a `spammer' by MAPS resulted in a substantial loss of Black Ice's Internet and e-mail services and damaged Black Ice's business and business reputation,'' the company wrote in court papers filed last month.

Legal experts say one of the key issues for the courts to address will be the vague definition of a spammer, and how MAPS renders its ``opinion'' that a company is sending spam.

``It depends on how that opinion is phrased,'' said Palo Alto attorney Mark Radcliffe, a cyber-law expert. ``If they are using a definition of spamming that is overly broad, I think they may have a problem.''

Black Ice is not the first company to challenge MAPS in court. Earlier this year, two other companies sued MAPS on the East Coast, including Harris Interactive, a giant e-mail company affiliated with the Harris polling service. MAPS has set up a legal defense fund to fight off challenges to its anti-spam efforts.

The legal battles over MAPS come at a time of heightened concern over how to deal with unsolicited e-mail on the Internet without going too far. The House of Representatives this summer passed legislation that would make it easier for Internet service providers and consumers to keep spam messages off their networks, but the Senate has not yet voted on the measure.

Judge allows case against spam blacklist to proceed

A Santa Clara County Superior Court Judge ruled Thursday that a New Hampshire company could pursue its claims against a local anti-spam organization, saying the company's allegation that it was damaged by being listed as a spammer has some merit.

The case, which has raised a host of free speech and e-commerce-related legal issues, involves the conduct of Mail Abuse Prevention System, a widely used Redwood City company set up to help companies screen junk e-mail.

Under attack from firms that have wound up on its so-called ``Blackhole List'' of junk e-mailers, MAPS filed suit this spring seeking a definitive ruling from a California court that its practices did not violate any laws.

The target of the suit was Black Ice, which makes software tool kits and had threatened legal action over being placed on the Blackhole List. Black Ice responded by counter-suing MAPS, accusing it of defamation and unfair business practices.

In his ruling Thursday, Judge Socrates Manoukian sided primarily with Black Ice. He ruled the firm can proceed with its case against MAPS and can seek punitive damages.

Black Ice attorneys Steve Levitan and Clark Stone said they were satisfied with the decision.

``Black Ice is pleased with the results and it intends to pursue its claims against MAPS,'' said Levitan. ``Black Ice is a legitimate business, and what MAPS did to us was -- in our view -- arbitrary and wrong. Black Ice was injured and it wants to be made whole.''

Michael Risch, attorney for MAPS, was dismayed.

``We are obviously disappointed that the court didn't see all of the issues our way. At the same time, several parts of the court's ruling significantly narrow the issues in the case as to what exactly it is Black Ice can claim as wrong-doing.''

Lawyers for MAPS have likened their organization to Consumer Reports, saying it simply renders an opinion on whether a particular company is generating unwanted spam and ignoring pleas from computer users to stop sending e-mails. As the company sees it, issuing those opinions is protected free speech.

Internet Service Providers such as Hotmail subscribe to MAPS, and can use it to block e-mail from Web sites on the Blackhole List. MAPS stresses that service providers make the decision whether to block e-mails, and that MAPS is simply in the business of providing information.

Black Ice disagrees, and in court papers depicted MAPS as recklessly disseminating false information. Critics of the Redwood City company maintain it has accumulated too much control over what Internet messages reach their destinations.

Black Ice was not the first company to challenge MAPS in court. Earlier this year, two other companies sued MAPS on the East Coast, including Harris Interactive, a giant e-mail company affiliated with the Harris polling service.

MAPS set up a legal defense fund to fight off challenges to its anti-spam efforts. The company even challenges readers on its Web site to sue MAPS, comparing the debate to the Roe v. Wade abortion decision. ``It's our hope that MAPS can help bring about a similar landmark case and carry it all the way to the Supreme Court,'' reads the Web site.

MAPS and Black Ice in Preliminary Hearing

by DIRECT NEWSLINE STAFF

Online Exclusive, Oct 15 2000

Mail Abuse Prevention System is fighting its third lawsuit -- this one with New Hampshire-based Black Ice Software. A preliminary hearing was held last Thursday in California Superior Court to define the issues for a later trial.

The two-way dispute started when Black Ice threatened to sue MAPS for listing Black Ice in its Realtime Blackhole List (RBL) of alleged spammers. Apparently, counterclaims and demurrers have also been filed.

According to MAPS, the court recognized the group's First Amendment rights, but also found substance in Black Ice's case.

The suit will proceed.

"We are generally pleased with the court's ruling," said MAPS attorney Anne P. Mitchell in a statement. "That the court also [said] Black Ice's contentions have some merit does not bother us at all; it simply means there are genuine issues for trial."

In a related development, MAPS announced that it had established a legal defense fund to help pay for cases like this one.

Spam Lawsuit Finds MAPS in Plaintiff Role

While Mail Abuse Prevention System LLC was defending itself in two high-profile legal challenges over the summer, the anti-spam group kept the lid on a third lawsuit that began in March and features MAPS as the plaintiff rather than the defendant.

This suit, which pits MAPS, Redwood City, CA, against Black Ice Software, Amherst, NH, a software manufacturer, came to light recently after a California judge ruled against MAPS in a couple of pretrial motions and tabled others for later proceedings.

Judge Socrates Manoukian denied MAPS' motion to label Black Ice's countersuit a strategic lawsuit against public participation. According to California civil law, a SLAPP suit is a lawsuit that seeks to prevent an organization from practicing its First Amendment rights. The court also denied MAPS' motion to strike Black Ice's punitive damages claim.

Another preliminary motion, in which both sides sought to dismiss the respective charges, was overruled, while a fourth motion, which said that MAPS lacked the validity to assert a California Business and Professions code specifically related to unsolicited commercial e-mail, was temporarily granted. The court also granted MAPS a couple of weeks to collect additional information and file an amended complaint.

Despite some of the pretrial rulings seemingly going against them, Anne Mitchell, MAPS' director of legal and public affairs, argued that it would be wrong to think that MAPS has suffered an early defeat.

"This was not an adjudication of the issues," said Mitchell. "It was simply the court saying 'go forward' to some issues, 'do not pass go' to others, and 'maybe' to the rest."

According to the lawyers for Black Ice, the rulings clear the case for the full-blown discovery phase and trial.

"Now the case can essentially move forward," said Clark Stone, an attorney with Skjerven Morrill, San Jose, CA, Black Ice's legal firm. "And we think, obviously, that factually we have a good case or we wouldn't be moving forward."

Stone said the parties will return to court in November for a scheduling order and that the case wouldn't get underway until at least a few months into 2001, about a year after the original complaint was filed.

The MAPS/Black Ice scrape began in March, when MAPS said it received several complaints from people who said they visited Black Ice's site in error, confusing the faxing software firm with the manufacturers of a fire wall software product called Black Ice Defender. As a result of the accidental visit, according to MAPS, Black Ice captured e-mail addresses and began spamming those names.

MAPS then placed Black Ice on its Realtime Blackhole List, a compilation of alleged spammers that Internet service providers and mail administrators can use as a guideline to block e-mail traffic.

After subsequent negotiations between MAPS and Black Ice broke down, the software firm threatened to sue MAPS over the RBL listing. In an unusual move, MAPS responded to that threat with a lawsuit of its own, charging that Black Ice is in violation of a California code against spam and seeking declaratory relief.

Mitchell said MAPS is often threatened with legal action when it lists a firm, but that this case was different.

"It is true that we often get threats, however, usually they are so much puffery," she explained. "In Black Ice's case, they refused to work on the problem to correct it and instead sent a credible legal threat to our litigation counsel."

Black Ice's attorney suggested that MAPS had a different motive.

"I guess it was somewhat of a pre-emptive strike," Stone said. Black Ice officials would not comment and referred all questions to its legal counsel.

In MAPS' previous two legal entanglements, yesmail.com and Harris Interactive sued the anti-spam organization for a host of reasons, ranging from unfair business practices to punitive relief. In both instances, the charges were dropped -- yesmail and MAPS reached an out-of-court settlement, and Harris reached agreements with a few big ISPs and pulled out of the case.

MAPS' March lawsuit, predictably, led to a Black Ice countersuit, which was filed in July and accused the group of interfering with its contractual relationships, restraint of trade and more. It also requested punitive damages for a "substantial loss of Black Ice's Internet and e-mail services," according to court papers. The cross-complaint, in turn, led to MAPS' shouts of a SLAPP suit.

"Our suit is founded on our First Amendment right to publish our opinion as to sites which do not follow our acceptable mailing list management practices," Mitchell said.

Black Ice has since been removed from the RBL and is now on probationary status as the case proceeds.

"The court held that, even taking all of MAPS' allegations against Black Ice as true, that MAPS had failed to state the proper factual basis for its claims of spamming by Black Ice," Jozsef Nemeth, president of Black Ice Software, Amherst, NH, said in a statement.

The two began scrapping in March 2000 when MAPS said it received several complaints about Black Ice. The people who complained said they received unsolicited commercial e-mail from Black Ice as a result of visiting the firm's site accidentally.

MAPS subsequently put Black Ice on its Realtime Blackhole List, a compilation of alleged spammers that mail administrators use to block e-mail traffic.

After negotiations between MAPS and Black Ice broke down, the software firm sued MAPS over the RBL listing. In an unusual move, MAPS responded with a lawsuit of its own, charging that Black Ice was in violation of a California code against spam.

In their press release, following a May 18th hearing in California, Black
Ice claimed that "The Court held that, even taking all of MAPS'
allegations against Black Ice as true, that MAPS had failed to state the
proper factual bases for its claims of "spamming" by Black Ice."

"The reality is that the May 18th hearing was a demurrer hearing"
explained Anne P. Mitchell, Esq., MAPS' Director of Legal and Public
Affairs. "A demurrer is essentially a technical tool which allows a party to
ask the Court to make a ruling as to whether the other side's pleadings are
sufficient to move forward on the issues contained in those pleadings.
They do not in any way address the underlying merits; they speak only to
the issue of whether a particular legal claim has been properly and
sufficiently pleaded - are the requirements for that particular legal claim
supported by the facts as they have been put forth in the pleadings?"
emphasized Mitchell.

"The matters to which the Black Ice press release refers were actually
heard by the Court and reported on back in October of last year! It is
true that at that time the Court disallowed some of our claims, including
that under the California Business and Professions Code because, in part,
we didn't meet the California definition of an "ISP", but at no time has the
Court dismissed all of our "claims of "spamming" by Black Ice", nor has
the Court made any factual finding at all with respect to Black Ice's
activities."

Continued Mitchell, "Why they are bringing up procedural matters which
occurred more than 6 months ago, and which had already been made
public, is beyond me. While the Court did finalize its October findings
just last week, the findings are old news."

In addition, the Court in October disallowed certain others of MAPS'
claims, and disallowed claims made by Black Ice during the May 18th
hearing. "This is just business as usual. Between the time that a lawsuit is
filed, and the time that it gets to trial, many claims may fall by the wayside,
and others may be added. We still have a solid, viable case, and we fully
expect to prevail on the merits" added Mitchell.
MAPS is based in Redwood City, California and provides spam
prevention resources to systems administrators, as well as
services to end users. For more information, please contact
Anne P. Mitchell, Esq., Director of Legal and Public
Affairs, at press@mail-abuse.org, or
650-444-0346.

War of Words Between MAPS, Black Ice Software Escalates

Seeking to "set the record straight" concerning its lawsuit with Black Ice Software, anti-spam group Mail Abuse Prevention System LLC issued a news release last week correcting what it sees as inaccuracies in Black Ice Software's version of events.

Black Ice Software, Amherst, NH, announced May 24 that the Superior Court of Santa Clara County, CA, had dismissed MAPS' complaint that Black Ice violated California's anti-spam statute. Black Ice Software, which makes Internet firewall software, also said the court dismissed MAPS' claims that it violated the Electronic Communications Privacy Act, among other charges.

However, MAPS says Black Ice is celebrating the end of the war when it really won only a small battle. MAPS issued a release dated May 25 titled "MAPS Issues Correction to Black Ice Press Release of 5/25/01," seeking to clarify a lawsuit fraught with charges and countercharges from both sides.

Anne Mitchell, MAPS' director of legal and public affairs, said the May 18 court appearance referenced in Black Ice Software's announcement was a "demurrer hearing," which is held to decide whether pleadings in the case meet the legal requirements to allow the case to proceed. The meeting was not intended to rule on the merits of the case, she said.

"The matters to which the Black Ice press release refers were actually heard by the court and reported on back in October of last year!" Mitchell said. "It is true that at the time, the court disallowed some of our claims, including that under the California Business and Professions Code because, in part, we didn't meet the California definition of an ISP, but at no time has the court dismissed all of our claims of spamming by Black Ice, nor has the court made any factual finding at all with respect to Black Ice's activities."

According to the court's order dated May 18, five of six counts against Black Ice Software were originally dismissed in October, but MAPS was allowed to amend its complaint. Those amended complaints were dismissed May 21 as well, leaving one count remaining against Black Ice.

However, the court upheld one count of unfair business practices and restraint of trade against MAPS.

Mitchell noted that the court's decision is just "business as usual" and that between the time the lawsuit is filed and the time it goes to trial, a number of claims can be disallowed and new ones can be considered by the judge.

"Why [Black Ice is] bringing up procedural matters which occurred more than six months ago, and which had already been made public, is beyond me," Mitchell said.

The charges go back to March 2000, when MAPS said it received several complaints from individuals who claimed that Black Ice Software was spamming them. They complained they received spam after "accidentally visiting" Black Ice Software's Web site. MAPS, Redwood City, CA, subsequently put Black Ice Software on its Realtime Blackhole List, a compilation of IP addresses that allegedly tolerate spammers. Mail administrators use the RBL to block e-mail traffic.

After negotiations between MAPS and Black Ice broke down, the software firm sued MAPS over the RBL listing. MAPS responded with a lawsuit of its own, charging that Black Ice was in violation of California's anti-spam statute.

Last fall, Black Ice Software filed a motion to dismiss MAPS' claim that it was a spammer, said Clark Stone, an attorney with the San Jose, CA, law firm of Skjerven Morrill MacPherson LLP, which represents Black Ice. The court ruled in October in favor of Black Ice, but allowed MAPS to amend its cross-complaint, which it did by adding four more charges. Stone said in January that Black Ice asked the court to rule on the amended complaint. On May 18, he said, it ruled in Black Ice's favor. This led to the May 24 release by Black Ice.

"We asked the court for a judgment on five claims in January," Stone said. "The court ruled in our favor."

He said the software maker filed a cross-complaint against MAPS, charging it with racketeering and antitrust violations, among others. He also said the court ruled in Black Ice's favor last week by not dismissing all but one of the charges contained in that complaint. A hearing is set for June 19, at which time the judge may set a trial date. Stone said he expects the case to come to trial at the end of the year or early next year.

Mitchell said MAPS' case against Black Ice Software is strong and that she expects to win.

"Last week the court heard our requests that [the judge] dismiss some of [Black Ice's] claims on various technicalities," she said. "Our suit against them is alive and well, and we fully expect to prevail."